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Slavery as Punishment: Original Public Meaning, Cruel and Unusual Punishment and the Neglected Clause in the Thirteenth Amendment

Steadfast originalists agree that the original meaning of our constitution's language, once found, should be followed, even when it leads to unhappy outcomes. Yet, in a famous lecture in 1989, Justice Scalia, a leader in the modern originalist movement, cast doubt on the duty of fidelity to originalism. He asserted that the originalist judge can appropriately avoid outcomes that are "too bitter" either by deferring to precedent or by temporarily abandoning originalism. Ironically, libertarian and liberal originalists have been among the most dismissive of Justice Scalia's faint-heartedness. They contend that the problem is the narrow approach to originalism that Justice Scalia and many other conservative originalists employ. Libertarian and liberal originalists tend to conclude that an abstract clause in the constitution should be understood in a broad way that allows for its evolving application over time rather than narrowly, in accordance with the original expected application. On this view, they assert that originalism, properly employed, will not produce the kind of grossly objectionable results that caused Justice Scalia to be faint of heart. Building on this assumption, they have also offered a new kind of normative justification for steadfast originalism. They assert in essence that the system of government that our constitution created is legitimate, in that it adequately protects our rights, and that steadfast originalism is simply the best way to preserve the legitimacy-enchancing features of the document. However, this article challenges the assumption of the libertarian and liberal originalists by focusing on relatively specific constitutional language that courts and scholars have long neglected. That language appears in the thirteenth amendment, authorizing slavery as a punishment for crime. The article shows that the original public meaning of this clause, indeed, leads to abhorrent outcomes, including the emasculation of many modern protections grounded on the eighth amendment. The article thus reveals why the legitimacy-enchancing theory for steadfast originalism is ill-founded. It also reveals that the negative implications of Justice Scalia's comments for originalism as a coherent interpretive method cannot be dismissed simply by a move within originalism away from a focus on original expected applications to less confining measures of original meaning.